The Lived Constitution

Despite my admiration and enjoyment of America’s Unwritten Constitution, I have some disagreements as well. Professor Amar is absolutely correct to reject a wooden textualism, but one of his interpretive moves strikes at the formality that comes from interpreting the language of the Constitution as fixed when it was enacted. In particular, I worry about the “lived Constitution.” Here Professor Amar discovers a mode of constitutional interpretation which discovers unenumerated rights in the practices and beliefs Americans live by. An example would be the emergence of a right to contraception.

To be sure, the Constitution’s structure permits a lot of room for the development for social norms. Federalism for instance permits a forum of experimentation. New social norms change law through the process of passing ordinary legislation. No state bans contraception now and none now would do so, regardless of whether the Court had declared it a constitutional right.

But I fail to see why norms should become part of the Constitution even if they enjoy substantial support. First, that support does not necessarily represent a consensus about making the norm a constitutional right. It is simply different to accept a norm as a good thing now as opposed to entrenching it for the future in the federal constitution. We may need time for second thoughts or believe that the costs of entrenchment outweigh the benefits given future uncertainty. Second, when a consensus is not crystallized into a single legal form it is as a general matter less definite and harder to apply. Finally, accepting this method of updating the Constitution detracts from the amendment process which is clearly about consensus and permits crystallization.

Professor Amar suggests that an interpretation of the Ninth Amendment may permit this evolving conception of rights but I do not see the Ninth Amendment as a vessel for substantive rights. Instead it is an interpretive rule to prevent the specifications in the Bill of Rights from implying that individuals lack rights against the federal government when the limitations of the enumerated powers already provided a large space for unenumerated rights against that government. It is conceivable that the Privilege or Immunities Clause in the Fourteenth Amendment was open- ended and permitted evolving rights, but I would like to see more evidence on this point than is contained in Professor Amar’s book.

In any event, Professor Amar’s enthusiasm for the “lived Constitution” mode of interpretation owes much to his view that it will strengthen the text “by connecting it to rights claimed and practiced by each generation of Americans.” I think that this claim does not give enough weight to the Article V amendment process. That process is a better way for each generation to entrench rights against further change with the advantages of deliberation and legal formality—a point that Mike Rappaport and I develop in Originalism and the Good Constitution.

In my next post, I will consider whether Professor Amar has given economic rights their due.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

Comments

I’m not sure we need this or that model. The Framers would be horrified to see that we need RULES and models of interpretation to tell us we’re free. That was the overriding point. Wasn’t it?

Whatever happened to the idea that in the US, we are free to do whatever we want, as long as it doesn’t materially harm another? I recognize that such an interpretation (Jefferson, fist, nose) has been … eh… “beyond the pale” forever, but that only means that those who see it that way are slow on the uptake. Yes, it’s a long and salty tradition. (I say this in good humor, folks. I’m perhaps the slowest of the slow in some areas.)

Slavery was a notable part of this tradition. Many of the Framers thought that freeing slaves by law, whereas their humanity entitled them to the same equality before the law as white dis-aristocrats, was “beyond the pale.” Jefferson disagreed, but what’s a guy to do when so many are slow on the uptake? He tried. Many in that generation didn’t really have much of a grasp of the real revolution they had carried out. …errrr… started?

Yes. Started. It has a long way to go, really, before we grasp it and truly embrace it. While some want to call harking to the US’s revolutionary era “reactionary,” this idea of freedom, and even the idea of free, unmercantilist, markets, is the newest and brightest idea on the block. Everything ELSE is atavist.

Ok, yes, I get it. “How do we make the argument within the framework of law as it is known in the US?” Unfortunately for any hope of my being able to properly answer that question, IANAL. I don’t have enough of that technology in my grasp.

But shouldn’t that level of freedom, for adults, be the model from which the argumentation–and anything that positions as a legal model–flows?

I very much disagree with the “lived Constitution” as you defined it or the idea that customary practice can “create” rights. But that said, I do think there is a right to contraception and I do think it is in the 9th amendment. The 9th amendment protects those rights “retained by the people,” or in other words those rights that pre-exist government or natural rights. A right that pre-exists government cannot include government, so you cant have a right to education provided by government (but you can have a right to educate yourself as you wish) or to have healthcare provided by government (but you can have a right to purchase the healthcare of your choice). And no natural right can interfere with any other individuals natural rights, so it only really applies when every individual involved consents. But a right to consume contraception does not interfere with any other individual’s rights. Let me put it this way, you agree that judges should protect the first amendment right to freedom of speech right? Other then the fact that it is enumerated in the constitution, why should it be protected anymore then the right to consume contraception? If the only reason you believe the right of freedom of speech should be enforced but not the right to consume contraception is that the first amendment is enumerated, then the 9th amendment says you are interpreting the constitution wrong. The enumeration in the Constitution, of certain rights (such as the freedom of speech), shall not be construed to deny or disparage others retained by the people (such as the right to consume contraception). To refuse enforcement of the right to consume contraception is to deny or disparage that right compared to the freedom of speech.

Looked at that way, OK- but you pay for it yourself and do not ask others to pay for it – especially those who have objections to it.
Moreover, let’s stop categorizing everything as rights – let’s call it what it is – a marketplace option – and we know what the government believes about marketplace options (see O-care) now don’t we!!

Totally agree the person must find someone who will sell it to them which they purchase with their own money or services or somehow make it themselves. You cant have a natural right to contraception provided by government. But it is a right and protected by the constitution’s 9th amendment, that means congress cannot constitutionally ban consumption of contraception. That’s an important difference.

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